Is Attorney General Jeff Sessions at Risk of Professional Discipline?

Blog author and WMU-Cooley Law School Professor Victoria Vuletich teaches Professional Responsibility and Evidence at the Grand Rapids campus of Western Michigan University Cooley Law School. Before joining the WMU Faculty, she served as former staff ethics counsel of the State Bar of Michigan. Professor Vuletich was a guest lecturer at Hertford College, Oxford University, England, and will be returning to teach at Oxford in the summer of 2017.

As the political story of Attorney General Sessions’ recusal was unfolding last week, ethics attorneys around the country were busy discussing another potential twist to the situation: the possibility that Attorney General Sessions may be subject to professional discipline under the Alabama Rules of Professional Conduct. The possibility was first raised in a recent Rolling Stone article that quoted Fordham Law Professor Russell Pearce.1

Alabama Rule of Professional Conduct 8.4 states, in part:
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

The standard in 8.4(c) is a lower standard than the standard required to prove perjury. Several cases have suggested that: “dishonesty” includes “conduct evincing a lack of honesty, probity or integrity in principle; a lack of fairness and straightforwardness,” but need not involve conduct legally characterized as fraud, deceit, or misrepresentation. In re Scanio, 919 A.2d 1137 (D.C. 2007).

Additionally, the comments to Alabama Rule of Professional Conduct 8.4 state, in part:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney.

In short, attorneys who hold public office are held to a higher standard than other lawyers.

Here are the facts of Attorney General Sessions’ situation, as reported in a March 7, 2017 USA Today story:2:

Sen. Al Franken, D-Minn . . . asked Sessions what he would do if he became aware that “anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”. . .

“I’m not aware of any of those activities,” Sessions responded at the time. “I have been called a surrogate at a time or two in that campaign and I didn’t have have — did not have communications with the Russians.” . . .

“I did not mention communications I had had with the Russian ambassador over the years because the question did not ask about them,” Sessions said in a letter to the committee, explaining the disputed testimony.

“I answered the question, which asked about a ‘continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,’ honestly,” Sessions maintained.

Attorney General Sessions admits that he met with the Russian Ambassador Kislyak both in July at the Republican National Convention and in September in his Senate office, both meetings occurring while the presidential campaign was in full steam.

What is problematic for Attorney General Sessions is that:

1) by his own admission, he a “Trump surrogate,” – someone connected with the Trump campaign; and

2) the question did not inquire about a “continuing exchange of information during the campaign” but rather whether anyone affiliated with the campaign “communicated” with the Russian government during the course of the campaign.

At the moment he answered the question, he knew he had met with the Russian ambassador during the campaign. Whether it was about the subject matter of the campaign is irrelevant legally, as the question was asking, in essence, whether any communications had occurred, regardless of the content of the communications.

If a request for investigation is filed with the Alabama State Bar’s Office of General Counsel, the Office of the General Counsel is required by law to investigate and make a determination as to whether Attorney General Session’s response to the question and his subsequent reactions to the allegations of misrepresentation constitute a violation of Rule 8.4(c). Possible outcomes range from dismissal of the complaint outright if the Alabama State Bar believes 8.4(c) was not violated to suspension of Attorney General Sessions’ law license if it believes 8.4(c) was indeed violated. Other possible measures include a private or public reprimand.

If a discipline matter is pursued, Attorney General Sessions will have the benefit, like all other citizens, of being presumed innocent until proven guilty. But that will not halt the lingering political/policy question of what it means to have the nation’s top lawyer being subject to a professional discipline proceeding while in office.

1Rolling Stone, March 2, 2017, Why Jeff Sessions Must Resign as Attorney General

2USA Today, March 6, 2017, Attorney General Jeff Sessions: Senate testimony was ‘correct’

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